United States Court of Appeals

For the First Circuit

No. 12-2383
ANTHONY DECIANTIS,
Petitioner, Appellant,
v.
A.T. WALL,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]

Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.

James T. McCormick, with whom McKenna & McCormick was on

brief, for appellant.
Aaron L. Weisman, Assistant Attorney General, Rhode Island,
with whom Peter F. Kilmartin, Attorney General, Rhode Island, was
on brief, for appellee.

July 1, 2013

LYNCH, Chief Judge. In 1984, appellant Anthony DeCiantis

was tried in Rhode Island state court for the killing of Dennis
Roche, convicted of first-degree murder, and sentenced to life
imprisonment.

In 1998, he filed an application for postconviction

relief in Rhode Island state court, seeking relief based on the

prosecution's alleged failure to turn over exculpatory evidence
during his trial.

The Superior Court for Providence County denied

DeCiantis's application in 2007, DeCiantis v. State (DeCiantis II),

No. PM 98-0899, (R.I. Super. Ct. Mar. 7, 2007), and the R.I.
Supreme Court affirmed this denial in 2011. See DeCiantis v. State
(DeCiantis III), 24 A.3d 557 (R.I. 2011).

The R.I. Supreme Court

held that the withheld information was not material under the Brady
test for materiality.

See Brady v. Maryland, 373 U.S. 83 (1963).

DeCiantis then filed a petition, in 2012, for writ of

habeas corpus pursuant to 28 U.S.C. 2254 in the Rhode Island U.S.
District Court.
opinions.
2012

WL

The court denied the petition in thoughtful

See DeCiantis v. Wall (DeCiantis V), C.A. No. 12-018-M,

5287036

(D.R.I.

Oct.

24,

2012);

DeCiantis

(DeCiantis IV), 868 F. Supp. 2d 1 (D.R.I. 2012).

v.

Wall

DeCiantis has

appealed. We affirm because the decision of the R.I. Supreme Court

was

neither

contrary

to

nor

an

unreasonable

application

of

controlling Supreme Court case law, and so relief is precluded by

the terms of the Anti-Terrorism and Effective Death Penalty Act
(AEDPA).

See 28 U.S.C. 2254(d)(1).

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I.
We describe the facts found by the R.I. Supreme Court,
adding other facts from the record that are consistent with these
findings.
A.

Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006).

The Testimony at DeCiantis's Trial
We use the R.I. Supreme Court's summary of the evidence

presented

at

DeCiantis's

June

1984

murder

trial.

See

DeCiantis III, 24 A.3d at 559-60 (citing State

v. DeCiantis

(DeCiantis I), 501 A.2d 365, 365 (R.I. 1985)).

As the court

recounted:
The state's witness Louis Schiappa testified that on
December 4, 1981, he observed two other men force the
victim into a car driven by Anthony DeCiantis.
The
witness stated that he had seen DeCiantis drive the car
on prior occasions, and he identified the first two
letters on the license plate. These two letters were
identical to those on the registration of a car owned by
defendant's sister.
The next day Dennis Roche's body was discovered in a dump
in Providence.
According to Deputy Medical Examiner
Arthur Burns, Roche had died from a gunshot wound to the
trunk.
Roche had suffered a second gunshot wound,
several stab wounds, and injuries to the face and head
consistent with his having been run over by a car.
The state offered three additional witnesses, each of
whom testified about separate occasions on which
defendant had admitted to killing Roche.
Louis
Campagnone testified that approximately two months after
Roche's murder, he and defendant were in a restaurant
when DeCiantis admitted to having killed Roche, claiming
that he did it because he believed Roche to have been
responsible for the disappearance of DeCiantis' brother,
Rocco.
Robert Livingston testified that during the summer of
1982, he and defendant had a conversation in which
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Anthony DeCiantis told me that he and Ricky Silva had

killed Dennis Roche . . . . He said that Ricky had shot
him and he had stabbed him. Livingston also testified
that Rocco DeCiantis's disappearance had motivated the
killing.
DeCiantis I, 501 A.2d at 365-66 (alteration in original).
The third witness who testified that DeCiantis admitted
to Roche's killing was William Ferle.

Ferle testified that in

December 1981, DeCiantis told him that he and Silva "had killed
Dennis Roche, drove over him with a car, shot him."

According to

Ferle, DeCiantis said he killed Roche because "Roche kept annoying

him and throwing it in his face that about [sic] his brother being
killed on Halloween night and that it might be his turn the next
coming Halloween night."

Ferle testified that DeCiantis also

admitted on a few other occasions that he killed Roche.

DeCiantis

III, 24 A.3d at 560.

Ferle was extensively impeached on cross-examination by
defense counsel, using Ferle's criminal history and questioning
whether his testimony was motivated by the desire for state
protection or for a lesser sentence on pending charges, and hence
was not truthful.

Ferle admitted that he had been found guilty of

conspiracy and bank fraud in 1982, and that charges were pending
against him for robbery, murder, first-degree arson, and obtaining
money under false pretenses.

Id.

Ferle was asked whether it was

the investigation of the arson which had prompted him to testify,

or whether he was testifying "[o]ut of the goodness of [his] heart

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. . . to help the system?"

Id.

Ferle answered that "I gave my

word that I would tell the truth of . . . about any murders that I
was aware of and that is what I did and that is all I am here is to
tell the truth."

Id. at 560-61 (alteration in original) (internal

quotation marks omitted).

Defense counsel persisted:
Q:

What would you like to happen with respect to your

coming
forward
voluntarily
and
giving
this
testimony in these cases?

A:

Well, what I suggested was that I wanted protection

for me and my family.
My wife and daughter,
because a lot of the testimony I gave is against
top organized crime figures which I was involved
with and if they could get to me, they would kill
me and that if whatever time I had to serve, if I
could serve it in the custody of the State Police
and not in a prison because they can get to you in
a prison.
I know how things work.
I have been
around them for ten years, you know, when I was in
Danbury, I heard of things happening outside. Word
gets around.
I don't feel I would be safe in a
prison.

See id. at 561.

Defense counsel continued:

Q:

And is it your claim, sir, that you have been

promised nothing by way of consideration . . . by
way of sentence for [your] testimony?

A:

Like I said, there hasn't been no final commitment

given to me. I don't really know what's going to
happen at this point.

Q:

You expect . . .

A:

I am sure that I will be given protection somehow.

They will have to do that unless I'll be dead.

Q:

You expect more than protection for yourself and

your family, do you know, Mr. Ferle?

-5-

A:

I'd like for that to happen.

Q:

You [would] very much like for that to happen,

wouldn't you?

A:

I think anybody would.

Q:

Isn't it a fact that you are going to get it, sir?

A:

I can't say that truthfully, I don't know that.

. . .
Q:

You're telling us, then, that you don't care if you

go to prison or on [sic] for all these crimes or
not?

A:

I am not saying that.

Q:

Do you . . . you do care, don't you sir?

A:

Everybody cares, but whatever has to happen is

going to happen. I can't change that. I hope it
doesn't happen, but I don't know what's going to
happen. All I am here is to tell the truth.

See id.

Defense counsel pursued this same line of questioning on

several other occasions.

Defense

counsel

also

questioned

whether

Ferle

received or expected to receive payment for his testimony:

Q:

Do you expect to go into the Federal Witness

Protection Program with a stipend or something
every month . . . a salary?

. . .
A:

That really hasn't been discussed. I am in State

Police custody. I haven't talked about any Federal
programs.

Q:

Who's supporting you now?

. . .

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had

A:

I am in the custody of the Rhode Island State

Police.

Q:

Who supports your family?

. . .
A:

They're also in the State Police custody.

. . .
Q:

Right now, you are being supported by the taxpayers

of the State of Rhode Island?

. . .
A:

I don't know that I am.

custody.

I am in State Police

Id. (alterations in original) (internal quotation marks omitted).

On June 7, 1984, a jury convicted DeCiantis of murder in
the first degree.
B.

Id. at 559.

The Prosecution's Disclosures to DeCiantis

We describe how the Brady issue arose, although the

outcome of this petition does not turn on the fact of nondisclosure.

In 2005 and 2006, the Providence Superior Court, on
DeCiantis's application for postconviction relief, heard testimony
from the prosecutor in DeCiantis's murder trial, David Leach, id.
at 562, and from a lieutenant with the state police who had been
involved in "handling" Ferle as a witness, Michael Urso, id. at
566.

DeCiantis's trial counsel had died before the hearing.

at 568.

-7-

Id.

1.

Disclosures Concerning Ferle's Criminal History

Prosecutor
Criminal

Leach

Identification

testified

(BCI)

that

record

Ferle's

had

been

Bureau

of

disclosed

to

DeCiantis in February 1984, before his trial, but that this record
omitted offenses with which DeCiantis had not been charged at that
time.

Id. at 563.

Leach did not know whether he had disclosed to

DeCiantis any other information about Ferle's criminal history.

Id.
DeCiantis's counsel had cross-examined Ferle about crimes
that were not listed in the BCI record, id., such as the pending
murder charge and robbery charge, id. at 565.
Leach conceded that the prosecution, in a case concerning
a different defendant, Nicholas Bianco, had submitted a September
12, 1984 supplemental answer which listed many more crimes in which
Ferle had been involved than those about which Ferle had been
cross-examined

at

DeCiantis's

trial.

Id.

at

564.

That

supplemental answer stated that "[d]uring the course of the debriefing of William Ferle, he has indicated his involvement in the
following

criminal

activity,"

id.

(alteration

in

original)

(internal quotation marks omitted); it then listed twenty-four

crimes, including eleven arsons, nine robberies, one larceny, two
murders, and one conspiracy to murder.1

Indictments had been

The supplemental answer listed the robbery and arson, but

not the murder or the offense of obtaining money under false
pretenses, about which Ferle was cross-examined at DeCiantis's
-8-

issued by a grand jury for six of these crimes and Ferle was a
defendant in four of these cases.

Id.

Two crimes were the subject

of continuing grand jury investigations, and Ferle was a potential

defendant in four other cases.

Id.

Leach stated that he "assume[d]" that the state had not

learned of these crimes immediately before the Bianco trial, but
that he did not recall when these incidents came to the attention
of the state police.

Id. at 564-65.

However, Urso testified that

while he could not indicate in which month Ferle admitted all the
crimes in which he had been involved, it was "very possible" that
Ferle had disclosed all these crimes by June of 1984.

Id. at 566

(internal quotation marks omitted).

Neither the Superior Court nor the R.I. Supreme Court
made a specific finding as to which of Ferle's criminal activities
were known to those acting on the prosecution's behalf but not
disclosed to DeCiantis before his conviction.

The Superior Court

appeared to assume, arguendo, that the state withheld evidence

before trial as to a murder admitted by Ferle.

DeCiantis II, slip

op. at 9.
As said, the R.I. Supreme Court determined that "evidence
of additional criminal activity on the part of Mr. Ferle" was not
material.

It did not identify what evidence it was considering.

DeCiantis III, 24 A.3d at 573.

trial.
-9-

2.

Disclosures Concerning Ferle's Compensation

In a signed but undated memorandum of agreement between

Ferle, the R.I. Attorney General's Office, and the R.I. State
Police, Ferle acknowledged that while in the custody of the state
police, he had received almost $24,000 "for his support in a 'safe'
house and for the support of his wife and child."
(internal quotation marks omitted).

Id. at 565

Leach did not believe that

these amounts were disclosed to DeCiantis.

Id.

Urso further

testified that the state police had made mortgage payments for
Id. at 567.

Ferle until his house was sold.

confirmed

that

in

document

dated

May

21,

Leach nonetheless
1984,

the

state

indicated in an answer to DeCiantis's motion for favorable evidence

that "[n]o promises, rewards or inducements, other than personal
safety and the safety of his family have been made to William R.
Ferle."

Id. at 566 (alteration in original) (internal quotation

marks omitted).
II.
DeCiantis's 1998 state postconviction relief petition had
two claims: that "the State withheld information regarding the
specific promises, rewards and inducements made to witness William
Ferle," and "the State intentionally withheld an uncharged act[2]
-- the murder of Ronald McElroy -- admitted by [Mr.] Ferle prior to

In DeCiantis's postconviction memorandum, he asserted that

the state had actually withheld eleven of Ferle's crimes.
-10-

trial."

DeCiantis IV, 868 F. Supp. 2d at 2 (second alteration in

original) (internal quotation marks omitted).

As to the first

argument, the Superior Court concluded that "there is no reasonable

probability of a different result had the Petitioner been provided
with the specific expenditures made on Ferle at the time of trial."
DeCiantis II, slip op. at 9.

As to the second argument, the

Superior Court determined that "there exists no authority to

support the Petitioner's proposition that the State is obligated to
inform opposing counsel of uncharged admissions of a witness," id.,
and that "the addition of an immaterial uncharged admission creates
no reasonable probability of a different result," id. at 10.
On appeal, DeCiantis argued that the Superior Court erred
in finding that the state had not deliberately withheld evidence
favorable to him, and hence failed to give him the benefit of Rhode
Island law regarding deliberate nondisclosure.3

The R.I. Supreme

Court upheld the Superior Court's determination that there had been
no deliberate failure to disclose evidence favorable to DeCiantis,
DeCiantis III, 24 A.3d at 571-72, but rejected its conclusion that
DeCiantis was not entitled to disclosure of Ferle's uncharged acts,
id. at 572-73. Nonetheless, the court concluded that DeCiantis had

Under Rhode Island law, the deliberate nondisclosure of

evidence favorable to a defendant furnishes "grounds for a new
trial regardless of the degree of harm to the defendant." State v.
Chalk, 816 A.2d 413, 419 (R.I. 2002). This standard "'provides
even greater protection to criminal defendants than the one
articulated [by the United States Supreme Court].'" Id. (quoting
Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I. 2001)).
-11-

not satisfied his burden of showing that the undisclosed evidence

was material and affirmed the denial of his application.

Id. at

573.
In DeCiantis's 2254 federal court petition, he asserted
that (1) "the Rhode Island Supreme Court erred in affirming the
post conviction judge's finding that the state did not deliberately
withhold exculpatory evidence from the defendant, in violation of
his Fifth Amendment rights"; and (2) "the Rhode Island Supreme
Court erred when it found that if the state's failure to disclose
exculpatory evidence was not deliberate there was no constitutional
violation because the evidence was not material."

The district

court rejected4 the first argument on the basis that the "'good
faith or bad faith of the prosecution'" in failing to disclose
favorable evidence is irrelevant under clearly established U.S.
Supreme Court law.

DeCiantis V, 2012 WL 5287036, at *2 (quoting

Brady, 373 U.S. at 87).

The court concluded that the R.I. Supreme

Court's decision concerning the materiality of any undisclosed

evidence was neither "contrary to" nor an "unreasonable application
of" clearly established U.S. Supreme Court law, DeCiantis IV, 868
F. Supp. 2d at 5-6, and denied DeCiantis's petition, DeCiantis V,
2012 WL 5287036, at *2.

We agree.

The district court preliminarily determined that DeCiantis's

habeas petition had been timely filed, DeCiantis IV, 868 F. Supp.
2d at 3-4, a conclusion that is not at issue on appeal.
-12-

III.
We review a district court's grant or denial of habeas
relief de novo, meaning that "the district court opinion, while
helpful for its reasoning, is entitled to no deference."

Healy,

453 F.3d at 25. DeCiantis repeats his argument that the state high
court decision was both contrary to and involved an unreasonable
application of clearly established U.S. Supreme Court law.5

He

focuses on the state court's determination regarding the third

component of a Brady violation.

"There are three components of a

true Brady violation: The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued."
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

28 U.S.C. 2254(d) provides that

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim -(1)

resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an

unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
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A.

Did the R.I. Supreme Court Use a Materiality Standard

That Was Contrary to Clearly Established U.S. Supreme
Court Law?
The

U.S.

Supreme

Court

has

held

that

"[u]nder

the

'contrary to' clause [of 2254(d)(1)], a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state
court decides a case differently than this Court has on a set of
materially indistinguishable facts."
362, 412-13 (2000).

Williams v. Taylor, 529 U.S.

DeCiantis argues that the R.I. Supreme Court

applied the wrong materiality standard to his claims that the state
withheld favorable evidence.

It did not.

"[F]avorable evidence is material, and constitutional

error results from its suppression by the government, 'if there is
a reasonable probability that, had the evidence been disclosed to
the

defense,

the

different.'"

result

Kyles

of

the

proceeding

would

have

been

v. Whitley, 514 U.S. 419, 433-34 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion
of Blackmun, J.)).
The R.I. Supreme Court twice stated the correct standard
that evidence is material when "'there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.'" DeCiantis III, 24 A.3d
at 571, 573 (quoting Chalk, 816 A.2d at 419) (emphasis omitted).
It

noted

that

the

Superior

Court,

-14-

in

denying

DeCiantis's

application, had held that "there is no reasonable probability of

a different result had the [applicant] been provided with the
specific expenditures made on Ferle at the time of trial," and that
"the addition of an immaterial uncharged admission creates no
reasonable probability of a different result."

Id. at 568-69

(alteration in original) (quoting DeCiantis II, slip op. at 9-10)

(internal quotation marks omitted).
DeCiantis's argument is based on the fact that the court
also stated, in a variation, that "[w]e are unpersuaded that
evidence of additional criminal activity on the part of Mr. Ferle
would have materially changed the jury's evaluation of him as a
witness

or

proceeding."

would

have

changed

the

ultimate

result

of

the

Id. at 573 (emphasis added).

The R.I. Supreme Court did not "arrive[] at a conclusion

opposite to that reached by [the U.S. Supreme Court] on a question
of law."

Williams, 529 U.S. at 413.

It twice enunciated the

correct standard and twice noted the Superior Court's application

of

the

correct

standard.

The

court

also

twice

stated

that

DeCiantis had not met his burden as to materiality.6

Notwithstanding

the

court's

one-time

use

of

an

abbreviated expression of the materiality standard under Brady, its

decision was not "contrary to . . . clearly established Federal

It first stated this conclusion in a sentence that

immediately followed an unquestionably correct recitation of the
materiality standard under Brady. DeCiantis III, 24 A.3d at 573.
-15-

law, as determined by the Supreme Court of the United States."

28

U.S.C. 2254(d)(1).
B.

Was The R.I. Supreme Court's Application of the

Materiality Standard an Unreasonable Application of
Clearly Established U.S. Supreme Court Law?
"Under the 'unreasonable application' clause, a federal

habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's
case."

Williams, 529 U.S. at 413.

This is a tough standard.

"[A]

federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant
state-court

decision

applied

erroneously or incorrectly.
unreasonable."7

clearly

established

federal

law

Rather, that application must also be

Id. at 411.

DeCiantis argues that "the newly

discovered evidence was so overwhelmingly impeaching that the Rhode

This court has noted the "unreasonable application of prong

of 2254(d)(1) reduces to a question of whether the state court's
derivation of a case-specific rule from the [Supreme] Court's
generally relevant jurisprudence appears objectively reasonable."
O'Laughlin v. O'Brien, 568 F.3d 287, 299 (1st Cir. 2009)
(alteration in original) (quoting Hurtado v. Tucker, 245 F.3d 7, 16
(1st Cir. 2001)) (internal quotation marks omitted). "For example,
the state court decision may be unreasonable if it is devoid of
record support for its conclusions or is arbitrary." McCambridge
v. Hall, 303 F.3d 24, 36-37 (1st Cir. 2002). "The increment [of
the state court's incorrectness] need not necessarily be great, but
it must be great enough to make the decision unreasonable in the
independent and objective judgment of the federal court." Morgan
v. Dickhaut, 677 F.3d 39, 46-47 (1st Cir. 2012) (quoting
O'Laughlin, 568 F.3d at 299) (internal quotation marks omitted).
-16-

Island Supreme Court's decision to the contrary was unreasonable,

not just merely incorrect."8
The R.I. Supreme Court reasoned that at DeCiantis's
trial,

"Ferle

was

confronted

with

his

prior

conviction

of

conspiracy and bank fraud, as well as pending charges of obtaining

money under false pretenses, robbery, arson, and even murder," and
that "Ferle was questioned repeatedly with respect to what he hoped
to obtain in return for his testimony."
573.

DeCiantis III, 24 A.3d at

It also noted that Ferle was "questioned explicitly as to

whether or not he was receiving monetary support from the state or

from the police."

Id.

While the court did not make a finding as to which items

of favorable evidence pointed to by DeCiantis were withheld by the
prosecution, the court's conclusion was not unreasonable. The jury
did learn Ferle was facing charges of robbery, arson, murder, and
obtaining money under false pretenses, and that he and his family
were in the custody of the state police.

Ferle frankly admitted

that he hoped for more lenient sentences on the charges pending

against him, as well as state police protection, in exchange for
his testimony, and DeCiantis's counsel focused at length on these

DeCiantis further asserts that "there is clearly a

distinction
between
'actual
probability'
and
'reasonable
probability,'" and that under a "reasonable probability" standard
his "murder conviction was not a verdict worthy of confidence." As
said, the R.I. Supreme Court actually applied a "reasonable
probability" standard, and it did not do so unreasonably.
-17-

incentives in cross-examination.

Ferle was extensively impeached

at DeCiantis's trial, and disclosure of evidence that Ferle had

participated in more crimes, and had received specific payments
from the state police, would not have produced a reasonable
probability that "the result of the proceeding would have been
different."

Bagley, 473 U.S. at 682 (opinion of Blackmun, J.).

Even if we assume this evidence would have induced the jury to view
Ferle differently, there was still the testimony of the other
witnesses at trial, who overwhelmingly pegged DeCiantis, through
his own statements and other evidence, for Roche's murder.
IV.
The judgment of the district court is affirmed.
ordered.

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So